Back to the workplace – the new guidance and key considerations for employers

16 July 2021

With lockdown restrictions moving to “Stage 4” of the Government’s roadmap to recovery, one of the key questions will be what this means with regard to returning to the workplace and, in a recent article, we considered the rights of employees on this issue.
 

From 19 July 2021, the direction that people should work from home if they can will no longer apply.  However, in its new Guidance on working safely in Stage 4, the Government has stressed that it “expects and recommends a gradual return [to the workplace] over the summer”.  That Guidance also states that employers should discuss a return to the workplace with workers and make working arrangements that meet both business and individual needs.

We consider below the key aspects of the new Guidance in relation to offices and other considerations employers should bear in mind as they plan a return to the workplace:

WHAT DOES THE NEW GUIDANCE SAY?

Six priority actions for employers

  1. Complete a health and safety risk assessment that includes risks from COVID-19 (see below)
  2. Provide adequate ventilation (via natural ventilation, opening doors and windows, etc), mechanical ventilation (fans and ducts), or a combination of both
  3. Clean more often (shared surfaces in particular)
  4. Turn away people with COVID-19 symptoms
  5. Enable people to check in at their venue (there is no legal requirement to collect the contact details of people entering premises, but it is noted that doing so would support NHS Test and Trace)
  6. Communicate and train (i.e. keep workers, contractors and visitors up-to-date on how employers are using and updating safety measures).

Risk assessments and mitigating risk

The Guidance states that, in carrying out a risk assessment, employers should consider the different ways COVID-19 can spread and put in place measures to reduce the risk of each of those occurring.  Failure to do this may be considered a breach of health and safety law.    

The Guidance explains the ways in which COVID-19 spreads (e.g. through droplets in the air) and suggests practical ways to reduce the risk of those occurring.  For example, the risk of spread through droplets in the air may be reduced by adequate ventilation, or putting in place measures such as “cohorting” to reduce contact between people.  Spread through contaminated surfaces may be reduced by maintaining regular cleaning of surfaces and encouraging hand washing before and after touching shared objects.  There is also information on how poorly ventilated spaces may be identified (e.g. through the use of CO2 monitors).

The Health & Safety Executive website contains further guidance on making workplaces “COVID-secure”, including a document setting out what a COVID-19 risk assessment should contain.  However, it is important that when carrying out a risk assessment, employers apply their mind to their particular premises and business. 

Many employers have already carried out a risk assessment, in which case, the next step is to review and, if necessary, update that in light of the specific matters referred to in the Guidance.  

The Guidance points out that employers have a legal duty to consult workers on health and safety matters and encourages them to listen to concerns raised by staff and explain how those will be addressed and the risk of COVID-19 managed. 

Once a risk assessment has been carried out, it should be shared with staff and, if the employer has more than 50 employees, it should be published on its website.  It should also be kept under review and updated as and when necessary.

Returning to work

The Guidance emphasises the Government’s expectation and recommendation of a gradual return to the workplace over the summer.  It advises employers to remain responsive to workers’ needs, particularly since not all adults will have been offered two vaccinations.  It also recognises the fact that many employers are adopting hybrid working models and stresses that, whatever model is followed, employers should discuss them with those who will be affected and should also discuss with staff the timing and, if appropriate, the phasing of a return to the workplace.

With regard to specific categories of people:

  • Those at higher risk:  The Guidance notes that those who are clinically extremely vulnerable are no longer advised to shield.  As such, employers should continue to support those individuals by discussing their needs with them and taking any additional precautions advised by their clinicians.
  • People who need to self-isolate:  These people should not come into work and the Guidance points out that it is illegal to knowingly require or encourage those who are required to isolate to attend work.  Employers should enable those individuals to work from home, if appropriate.  The Guidance contains detailed information about who should self-isolate and for how long.
  • Those with a “protected characteristic”:  The Guidance stresses that, when applying it, employers should be mindful of the needs of particular groups of individuals and should not discriminate against anyone on the basis of a protected characteristic (such as disability or gender).  In particular, it is noted that employers have responsibilities towards disabled workers and those who are new mothers or pregnant and should, therefore, consider the individual requirements of those people.

Reducing contact between people and hygiene measures

The Guidance notes that, from Stage 4, social distancing guidance will no longer apply and there will be no limits on social contact between people from different households.  However, COVID-19 can still be spread through social contact and the Guidance states that employers can mitigate this by reducing the number of people workers come into contact with (e.g. through “cohorting” so each person only works with a few others, or using screens and barriers to separate people).  It also suggests that workstations should be assigned to an individual if possible and, if not, there should be ways to clean workstations between each user.

In short, what the Guidance seems to be saying is that, although social distancing is not mandatory, employers will need to apply their minds to this in the context of making their workplace as “COVID-secure” as possible.

The Guidance also contains practical suggestions with regard to hygiene (handwashing, sanitising facilities and toilets, changing rooms and showers).

Personal protective equipment and face coverings

Employers are advised not to encourage the precautionary use of PPE, unless they are in a clinical setting or responding to a confirmed or suspected case of COVID-19. 

In relation to the use of face coverings, the Guidance:

  • states that they are no longer required by law but that the Government “expects and recommends that people continue to wear [them] in crowded, enclosed spaces”;
  • recommends that employers consider encouraging the use of face coverings by workers, particularly in indoor areas where they may come into contact with people they do not normally meet and especially “enclosed and crowded places”;
  • does not provide any guidance on what is meant by “enclosed and crowded spaces”;
  • warns employers that some people may not be able to wear face coverings, noting that their use may make it harder to communicate with people who rely on lip reading, facial expressions or clear sound; and
  • suggests practical ways in which employers can (and should) support workers who choose to wear face coverings to do so safely. 

It is not clear from this whether and, if so, in what context and settings employers should require their workers to wear face coverings.  Employers are effectively left to their own devices to consider this as part of their risk assessment and measures to mitigate risk of infection.

Another point to note regarding face coverings is their use on public transport, which is relevant in the context of commuting.  Although the Guidance has practical advice regarding work-related travel (e.g. encouraging people travelling in one vehicle to use fixed travel partners, etc), it does not mention commuting or give employers direction on what they should do if a worker is concerned about commuting to work, particularly given the fact that face coverings will no longer be mandatory.  Although the Mayor of London has announced that face coverings will remain compulsory on London’s travel network, this will not apply to other networks.  Again, it seems employers have been left to “work this out” for themselves.  

OTHER POINTS TO CONSIDER WHEN PLANNING A RETURN TO THE WORKPLACE

In addition to the new Guidance, employers should also take into account the following:

  • Vaccine policy.  The Government issued new guidance to employers on COVID-19 vaccination on 12 July 2021.  It recommends that employers encourage and support their staff to get vaccinated. We recommend that careful consideration should be given to any policy in this regard.  ACAS has also issued advice to employers on vaccination for COVID-19.   
  • Hybrid working? Employers should consider whether a hybrid working model would suit their business in the long run and what that would look like.  ACAS has just published guidance for employers on how to consider, discuss and introduce hybrid working.  The CIPD has also published freely available resources on this topic.
  • Flexible working requests. We expect there to be an increase in formal flexible working requests with employees seeking to make permanent certain adjustments to their working pattern and location to reflect what they were doing during lockdown.  The key message for employers is to approach each request with an open mind and to follow the applicable legal process in the handling of such requests. Discrimination claims can arise and each request should be considered carefully to seek to avoid potential pitfalls.
  • Keep everything under review!  If we have learnt anything over the last 18 months or so, it’s to live with uncertainty being the norm.  Given the continued increase in cases (expected to reach 100,000 a day by mid-August), Government guidance may change with little notice, so employers need to be ready to act quickly if that happens.    

CONCLUSION

The new Guidance justifies the view of those who advised caution about mandating employees to return to work on 19 July 2021 before it was published.

In practice, the new Guidance is going to make it far harder than some had anticipated for employers to insist that their workers return to the workplace.  It will be important for employers to take great care in the communications provided to employees to ensure that they are able to react accordingly as they hear the concerns and views of their staff.  A blanket instruction to return to office is not recommended. 

Open communication, consulting with their workforce, remaining flexible and monitoring and addressing the issues and concerns raised by workers will be key to employers ensuring an orderly and safe return to the workplace.  However, it is clear that this won’t happen overnight.

Further Information

If you have any questions or concerns about the content covered in this blog, please contact a member of the Employment Law team.

 

About the Authors

Richard Fox  is a partner within the Employment team.  Richard acts for corporates, organisations and senior individuals in relation to employment matters of all kinds.

Natasha acts for both employers and senior executives in a wide variety of sectors including (but not limited to) financial services, law firms and other professional services firms and retail and luxury brands.

Özlem is a Professional Support Lawyer in our Employment Team.

 

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